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Sensible maternity provision is the first step to female retention, finds Sarah Grainger, in the first of a series on the opportunities and risks for women taking leave from the Bar.

We’ve certainly come a long way since Hannah Cross, called to the Bar in 1931 and the first woman member of the Bar Council, had to promise to use the public toilets in Lincoln’s Inn Fields before she was accepted by 1 New Square. But not so far that female representation at the senior levels of the Bar can be taken for granted. Last year’s Sex and Power Report from the Equality and Human Rights Commission (September 2008) revealed that a snail could crawl around the M25 nine times in the time (55 years) it will take women to be equally represented in the senior judiciary: traditionally drawn from the senior Bar.


Statistics on entry to the Bar are encouraging, though. According to Bar Council statistics, the female proportion of pupil barristers varied from 47% to 52% (2001–06). But a Bar Council study of barristers ceasing self-employed practice found that the proportion of women who began a tenancy between the years 1988–98, and who ceased to practise between the sixth and tenth year of call, was up to twice that of men. This leaves just 19% of self-employed barristers over 15 years’ call as female. Could the very nature of the self-employed Bar account for a female brain drain?

Nature of the beast

We can’t escape the fact that the profession and work culture was designed by men, for men, and despite the Bar Council’s strides forward in the realm of equal opportunities, working practices haven’t much changed over its long history. (Cross resigned from the Bar when her first child was born in 1945.) Self-employed barristers are expected to bear the financial risk of developing a practice, often necessitating travel, overnight stays and periods away from home. This, in addition to a prevalent culture of workaholism and presenteeism, point to a set-up that could be said to particularly disadvantage women, who often need to accommodate childcare and caring responsibilities. Indeed, Lord Neuberger’s Entry to the Bar report noted that: “The Bar Council should ensure that its own practices and policies do not unjustifiably disadvantage practitioners with disabilities and others, including women on maternity leave and those with caring responsibilities” (November 2007, Recommendation 46).

The Bar Council’s Equality and Diversity Committee works hard to promote the requirements for sensible maternity leave provision and the opportunities for flexible working, as does the Association of Women Barristers (see this issue p 17). But despite a “rent-free” period during maternity leave, there is no guaranteed income for women on leave and practices can wither, with work reassigned, clients poached and aged debt expiring: “I would consider my chambers more enlightened than many, but my busy junior practice almost disappeared altogether when I took a three-month maternity period for my first child.” was one experience emerging from a recent Bar Council exit survey.

In many sets women tend not to return after having children or, more commonly, return for a while and then give up. But with its unique structure, and an increasing “chambers” rather than individual ethos, should the self-employed Bar be able to offer more of a support net than other self-employed professions for women taking a career break? What support are chambers required to offer? And what more could they do if they are serious about female retention?

Gestation

The Bar Council was the first profession to adopt an equality and diversity code (in 1995). It published guidance on maternity policies back in May 1992, triggered by s 35A of the Sex Discrimination Act 1990 (enacted by s 64 of the Courts and Legal Services Act 1990) which made it unlawful for a barrister or barrister’s clerk to discriminate against women pupils and tenants on grounds of sex. Since that guidance it has become usual for sets of chambers to adopt maternity policies, but there are some, though, who have come to the idea late, pressed into it by practice management standards such as BARMARK.

In addition to compliance with anti-discrimination law, all barristers (also responsible for the actions of their clerks) are required to comply with the Code of Conduct’s broad obligation not to discriminate, as set out in paras 305 and 404. Annex G & H of the Bar Council Equality and Diversity Code sets out good practice with regard to maternity leave provision and “whilst a breach of the Equality Code for the Bar is not in itself professional misconduct, the Code provides an evidential standard against which allegations of discrimination may be judged.” (Guide to the implementation of maternity, paternity and parental leave policies under barristers practice management procedures.) 

Maternity leave good practice

The Bar Council Equality Code’s recommendations are as follows:

  • All chambers of more than one tenant should have a written policy on maternity leave, containing details of the member’s right to return, the extent of periods of leave offered free of rent/expenses, and the manner in which this exemption will be calculated, entitlement to work flexibly, grievance procedure, and a commitment regularly to review the policy’s effectiveness.
  • Chambers are advised to offer a minimum period of six months’ free of chambers rent and expenses.

The rent-free period should apply irrespective of whether chambers’ rent is calculated as a percentage of fees earned or is a flat rate payment. The mechanics of calculation, however, are left to individual chambers to determine, depending upon how rent is paid. For women paying a percentage of receipts, one option is to base the calculation of the rent free period on average earnings over the preceding 12 months. The rent-free period could be applied during the six months after the woman has returned to chambers as this would be a time of relatively poor cash flow. Policies will also need to cover matters such as clerks’ fees, mortgage repayments and any contributions payable in respect of one-off investments, as appropriate.

The Bar Council Maternity, Paternity and Flexible Working Policy also recommends that:

  • Partners should be offered a minimum of one month’s leave free of chambers’ rent and expenses following the birth or adoption of a child by their partner, where they have/share responsibility for that child.
  • A woman should have the right to return as a tenant following the birth or adoption of a child for a guaranteed period of at least a year. During that period, she should be able to return to chambers without the need to re-apply for admission. This should also be applied to a man who adopts and is the principal carer of the adopted child.

Chambers are encouraged to respond positively to members’ wishes to work during their maternity leave or any career break. The written policy should set out how chambers plan to assist their members to keep in touch with chambers and practice developments during any period of leave and to return to practice. Invitations to training events, social occasions and information on chambers’ business should be passed on to members on maternity leave and chambers should endeavour to consult with them in relation to major chambers’ decisions which may affect the member’s practice. (See Managing Career Breaks, Freya Newbery, Counsel July 2008, p 23.) There should be at least one equal opportunity officer in chambers who can respond to queries about the policy and provide reports on its effectiveness. The policy should be circulated to all members, clerks and staff so that they understand the policy and their role in relation to it.

Floor of protection

This good practice guide is designed to act as a basic floor of protection, and is not intended to discourage chambers from adopting a more generous policy. Disappointingly, all that is currently mandatory under the Code is that chambers has “regard to” an equal opportunities policy. In response to concerns voiced to me in the course of my research that not setting out a more prescriptive maternity leave policy can enable some chambers to wiggle out of more enlightened provision, Ingrid Simler QC, chair of the Bar Council Equality and Diversity Committee, explains why the Bar Council doesn’t offer a model policy as such: “We can’t be too prescriptive on what chambers should offer, particularly when it comes to offering a definition of ‘rent free’, because chambers are so diverse with their own unique arrangements.” Grahame Aldous QC, vice chair, agrees, “we want chambers to apply their minds to their own situation so there is buy-in and it actually works well for that set in practice.” The interpretation of rent-free, for example, will vary from chambers to chambers, depending on whether contributions are based on a percentage of earnings or a flat rate system. Thankfully, the number of chambers operating their contributions on a banding system, are increasingly rare, but this had a “horrible effect on women taking time out,” says Simler. The Equality and Diversity Code for the Bar does not suggest that chambers should waive contributions to a mortgage where chambers have purchased their own premises. The Equality Code notes the separate issue that high flat rate contributions may deter women from returning to work part time as they may have difficulty in making payments to chambers from a reduced income.

Change afoot

A working group on the Equality Code, drawn from the Bar Council and Bar Standards Board, are also considering whether to roll in maternity leave and flexible working principles into the Code of Conduct itself so that certain maternity leave principles become mandatory under the Code. Indeed, subject to Board approval, this is likely to become a compulsory requirement.

Not likely, however, is an extension of the leave recommendation to nine months in line with statutory provisions, perhaps a reflection that extending maternity expectations might have the converse effect of discouraging chambers from taking women on at all. Further, this enhanced maternity leave, contrasted to the poor statutory paternity leave provisions (just two weeks’ leave) imposes a presumption of parental responsibility on the mother alone—concerns that Nicola Brewer, chief executive of the Equalities and Human Rights Commission, has publicly voiced.

Progressive policies

Many chambers, as employers more generally, still do not afford fathers the same opportunities for leave as mothers, which promotes the assumption that childcare is the woman’s role alone. “As long as it’s seen as a woman’s problem, it will remain a woman’s problem—it’s an issue for everyone and lots of men also have issues with trying to work flexibly,” comments Aldous. One Essex Court, for example, is unusual in offering parental leave to “any mother (and any father with sole daytime care)” which may extend to up to two years after the birth or adoption of the child, and extended up to a maximum of four years for subsequent births or adoptions. Progressive policies should also look to incorporate same-sex parents and adoptive parents and set out the principles and possibilities of part-time working arrangements. Furnival Chambers, for example, one of the few chambers to actually publish its equal opportunities policy on its website (many are very secretive about their maternity leave arrangements), sets out the options for returning to work part time, and clearly sets out how this will impact on contributions.

Business case: do the maths

One of the EDC’s key messages is that it makes business sense to make sensible provision for maternity leave.What would you give to attract someone of 10 years’ call to your chambers? Agencies charge huge fees to head hunt barristers of this calibre.  It’s worth doing the maths—if tenants leave after six to 10 years’ call to have a family and are not encouraged to come back, a significant investment is thrown away. By six years’ call, for example, as much as £200,000 could have been invested, if you consider a pupillage award of £40,000, then a graduated rent structure over the first five years. This is the period when a barrister is most profitable to chambers. Whilst women are away on leave, they won’t be making any charges on chambers, and chambers will only be out of pocket by a few thousand pounds.

Leaking talent

And it’s not just the financial investment, of course. Senior members of chambers invest a good deal of time, emotional investment and personal credibility in bringing the junior Bar into cases and establishing them with solicitors. This is why you need policies in place to enable women to return, to make retention work; otherwise they are lost completely to the profession, or leave to join the employed Bar, CPS and GLS. “And that’s a criminal waste to the self-employed Bar,” says Simler.  Should chambers act as a support net during the period of maternity leave? “Yes,” says Aldous, “the whole point of being in chambers is that it should be a support mechanism.” Simler recalls that one chambers, several years ago, had wanted to place a limit on the number of babies women members had. “There should be no discussion about whether to have sensible provision or not.” Aldous adds: “bad sets with bad policies will leak talent and will ultimately fail. You do worry about the vision of chambers, [a sensible maternity policy] is the acid test of whether chambers has a future.”

Sarah Grainger is editor of Counsel
Next month, the problems encountered and the culture that makes a difference

Diversity expectations

Discriminatory working practices are no longer acceptable to solicitors, government prosecuting authorities and lay clients. The Crown Prosecution Service has an “expectation code” of all its suppliers that they need to follow in order to be awarded work, viz equal opportunities policies and procedures. The Attorney-General, in July 2008, launched her own “diversity expectations” that need to be adhered to by the chambers of external counsel who undertake civil and criminal work for the Government and it is expected that this will be extended to the Legal Services Commission (LSC). The LSC already has a clause in its procurement contract with solicitors that when solicitors contract barristers, chambers need to comply with LSC expectations on diversity.

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